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Ontario|Arbitration / MediationMediation 509 The difference between mediation & a lawsuit
- Overview
An alternative to litigation that is being encouraged by lawyers, social workers and judges is mediation. Mediation involves the intervention of a third party professional who acts as a facilitator for the parties to help them reach their own agreement. Mediators generally have backgrounds as lawyers, social workers and psychologists. Research has found that generally, parties who mediate their own agreements have a greater tendency to actually stick to them. One theory is that this is so because the parties have actively participated in the process, and feel that they each have had control of their own destinies, as opposed to court orders which involve a judge imposing a decision which neither party may be content with.
Unlike a lawyer in litigation, the mediator does not represent one side or the other. A mediator's job does not involve giving legal advice. The mediator's role is to try and bring the parties to agreement. By doing so, the mediator faces many challenges including the following 9:
1. Creating an objective and safe psychological and emotional environment so that each party feels he or she is being heard without prejudice or judgment,
2. Allowing each party to speak freely so as to express his or her position with respect to the various issues,
3. Identifying the contentious issues,
4. Getting the parties to go below the surface of the contentious issues, in an attempt to express the underlying reasons for having and maintaining a particular position,
5. Helping the parties to understand where the other is 'coming from' emotionally and psychologically,
6. Offering various compromise solutions for positions where the parties seem to be at an impasse,
7. Encouraging the parties to come up with their own solutions,
8. Reinforcing the parties efforts to mediate, and
9. Pointing out the parties "Best Alternative to No Agreement", which generally is lengthy and costly litigation.
The mediator's role is to try and find some common ground between the parties, and work with them to help them come together to a final settlement on all issues.
- Payment
Generally, the parties split the cost of the mediation 50-50. That means that both parties are splitting the cost of one professional. That is considerably less expensive than each party paying for his or her own lawyer. As well, the mediation process is generally outside the realm of the courtroom. Going to court is very expensive and usually involves:
a) many meetings with your lawyer,
b) getting your story and position down in affidavit form,
c) reviewing and putting together disclosure materials such as financial documents, letters and correspondence from each party and from third parties,
d) drafting the originating process, application or statement of claim,
e) research for the relevant legal issues,
f) drafting, serving and filing information statements for the judge in addition to the pleadings,
g) all attendance time at court, including waiting time, which could be hours, and
h) all court filing fees, where applicable.
In litigation, each party pays his or her respective lawyer for all these procedures. Obviously, this is much more costly than both parties paying for one mediator
- Do I still need a lawyer if I mediate?
Even if the parties decide to mediate, each should continue to have his/her own lawyer. The lawyers will provide ongoing independent legal advice to ensure that each party is aware of their respective rights and responsibilities along the way. As well, both parties must be aware of the legal consequences of any agreement reached, and each of the lawyers must review the agreement and discuss it with the relevant party before signing. It is not the mediator's role to give legal advice and so each party must have his or her own lawyer for that purpose.
- Conclusion
Mediation is a viable, affordable and effective alternative to litigation. If you think you and the other party are capable of reaching an agreement with the help of a third party professional, you should consider this option. Settling your differences through mediation can help you save time and money.
For more information about mediation, refer to other sections of Legal Line .
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